"All the affairs of men should be managed by individuals or voluntary associations, and . . . the State should be abolished." —Benjamin Tucker

"You must first enable the government to control the governed; and in the next place oblige it to control itself." —James Madison

"Fat chance." —Sheldon Richman

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The Constitution Revisited

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This book challenges the assumption that the Constitution was a landmark in the struggle for liberty. Instead, Sheldon Richman argues, it was the product of a counter-revolution, a setback for the radicalism represented by America’s break with the British empire. Drawing on careful, credible historical scholarship and contemporary political analysis, Richman suggests that this counter-revolution was the work of conservatives who sought a nation of “power, consequence, and grandeur.” America’s Counter-Revolution makes a persuasive case that the Constitution was a victory not for liberty but for the agendas and interests of a militaristic, aristocratic, privilege-seeking ruling class.

Tuesday, December 26, 2006

In this post I linked to three articles of mine titled "Beware Income-Tax Casuistry," which were first published in Freedom Daily (The Future of Freedom Foundation) and now are posted on FFF's website. In these articles I make several points, namely, that:

1) while the income tax is immoral and illegitimate (in the sense of violating individual rights and natural law), it is not unconstitutional or "illegal" (in the narrow sense of being an enactment of government).

2) the courts have consistently held that the U.S. government -- from the founding -- had a "plenary" and "all-embracing" power of taxation; that is, it had the constitutional authority to tax anything and everything, including incomes, subject to two restrictions.

3) the Sixteenth Amendment had one purpose: to remove one of those restrictions. In other words, the Sixteenth Amendment did not give the federal government a power it did not possess previously. It only let the government impose a tax on some kinds of income (from real and personal property) in a way it was prohibited from doing previously. In still other words, the Amendment was not needed to permit the taxation of income from labor. As a corollary and contrary to popular belief, no Supreme Court ever ruled that a tax on wages was unconstitutional.

4) most of the claims of the so-called tax-protester movement (TPM) are bogus, specifically, the claim that the income tax -- as currently enforced -- is unconstitutional.

Also implied, but not discussed, in the article is that by conventional legal and constitutional (though not by libertarian) standards, the government has indeed imposed a tax on incomes "from whatever source derived." This view is contrary to the TMP, which has turned out reams of paper arguing that in fact there is no income tax on the books and that if there is, it is illegal and unconstitutional.

Having read much of the TPM literature and the relevant court cases, I find no merit to their arguments. I wish it were otherwise. I would love to be able to believe that the government never really passed the tax, or passed it in a way that honest courts would find illegitimate. But it's not true.

This has upset some people. Why do I raise the issue? I do so because, first, I don't want to see gullible and wishful-thinking libertarians led astray. They might go to prison if they pursue courses of action endorsed by the TPM.

Second, the movement discredits serious libertarian objections to taxation and government -- so much so that were I conspiracy-minded, I would suspect the TPM was an IRS front set up to subject libertarians to ridicule. That's how ridiculous its grounds for protest are.

As I say in the article, we won't beat the income tax by legal sleight of hand before some judge. We'll only beat it by convincing a critical mass of people that taxation is theft and that government is organized aggression.

Make no mistake about it: I believe the income tax (like all taxation) is theft and in conflict with natural rights and natural law. But something immoral can be constitutional and "legal." Libertarians shouldn't have to be reminded of that.

Steven, thanks. I appreciate your words. I agree that the "right-legalists" (Brad Spangler's apt term) are putting their energies into the wrong cause. But unfortunately, I think the Constitution is (purposefully) vague enough that most spending can be "justified" by it. I don't put much hope in constitutions constraining government. People in government, with an interest in expansion, will always be the ones interpreting a constitution. It can't interpret or enforce itself.

The income tax is illegitimate, but not for the reasons they say. In fact, their case implies that an income tax could be legitimate if the government followed its own rules. That's hardly a libertarian argument.

The income tax is illegitimate because the initiation of force is illlegitimate; that is, because government per se is illegitimate.

Thanks for this series. I'm sorry that being out of town for a while has kept me from taking much note of it until now.

The conversation reminded me a lot of the controversy between the disunionist abolitionists and the Liberty Party faction in the mid-1840s, when folks such as James Birney, Salmon Chase, and Alvan Stewart were arguing that the Constitution already forbade slavery, if you read the right clauses in the right way. Here's a paragraph from Henry Mayer's excellent biography All on Fire: William Lloyd Garrison and the Abolition of Slavery, on the Liberator circle's take on the controversy (boldface added):

'Such readings Garrison dismissed as naive wordplay or deceptive political contrivance. He insisted that the courts and the public had so uniformly accepted the proslavery protections of the Constitution for half a century that individuals could not dextrously conjure them out of existence. Frederick Douglass made a keen summary of the argument: "They looked at slavery as a creature of law; we regarded it as a creature of public opinion." Even if the document could be read as the Liberty men suggested, Garrison stressed, "such construction is not to be tolerated against the wishes of either party." Certainly the South would never agree that the three-fifths clause had to defer to some vague emanations that the preamble embraced anti-slavery philosophy, and the Prigg and Latimer [fugitive slave] cases demonstrated that stern New England jurists would not substitute natural law for a strict construction of the fugitive slave clause. Political realism, he insisted, required people to recognize the Constitution as a corrupt "bargain and compromise" of which "no just or honest use ... can be made, in opposition to the plain intention of its framers, except to declare the contract at an end, and to refuse to serve under it."' --Henry Mayer, All on Fire: William Lloyd Garrison and the Abolition of Slavery, p. 326.

Those who want to end a legalized injustice would be better off challenging the climate of acceptance that sustains it, not the textual or procedural mumbo-jumbo that formalizes it. And that is far better achieved by appealing to conscience and common morality than it is by pseudo-legalistic grandstanding in the futile attempt to out-lawyer the whole American judicial-regulatory apparatus and the authors of the United States tax code.

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